Supreme Court Justices Amy Coney Barrett, right, and Elena Kagan, testify during a House Appropriations subcommittee hearing, Tuesday, July 14, 2026, on Capitol Hill in Washington. (AP Photo/Nathan Howard) Writing about the Supreme Court almost 50 years ago, famed political scientist Robert Dahl said that “To consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution. … As a political institution, the court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it.”
The result, Dahl argued, is “that frequently we take both positions at once.”
But a poll released just last month suggests that Americans may be coming off the fence in their views of the Supreme Court. More than half of Americans disapprove of the court’s job performance, and 46 percent favors Trump administration policies “based on ideology rather than the law.”
The Supreme Court has dug itself into a hole, and it just keeps digging. This country cannot afford a high court that is partisan, nor can it afford justices who keep telling the public to ignore the fact that they are among the most political in our history.
The current court ranks with the Taney Court (1836-1864), which gave us the Dred Scott decision that helped bring about the Civil War, and the 1930s Supreme Court, whose consistent rulings against Franklin Delano Roosevelt’s New Deal precipitated a constitutional crisis. That’s not the kind of company any court should want to be in.
On June 29, after the court gave the president the authority to fire members of what had been independent federal regulatory agencies, Princeton’s Paul Krugman wrote, “Today, the Supreme Court declared war on U.S. democracy.”
“We have six people,” he added, “determined to put the catastrophically bad leader that we currently have sitting in the White House in charge of everything, which is a nightmare scenario on every level.”
This thumb on the scale to advance a political cause is not just a passing fad. Seven years ago, Sen. Sheldon Whitehouse (D-R.I.) produced an analysis of the Supreme Court’s 2017-2018 term, which led him to conclude, “Modesty, originalism, stare decisis, and even federalism — all supposedly conservative judicial principles — have been jettisoned when necessary to deliver … partisan Republican wins.”
That would be bad enough, but the justices don’t want the rest of us to believe what we are seeing. The court’s current crisis arises not only from the kinds of decisions it makes, but also because the justices, when they speak in public, are not being candid about what is happening on the court.
They lacerate each other in their opinions, highlighting their political division. For example, on the losing side of this term’s Voting Rights Act case, Justice Ketanji Brown Jackson noted what she called a “strong political undercurrent” to the decision. In Jackson’s view, the majority’s decision was about political power, not “principle.”
In turn, Justice Samuel Alito accused Jackson of using her dissent in that case to make “a groundless and utterly irresponsible charge,” calling her opinion “trivial at best” and “baseless and insulting.”
And recall what Justice Antonin Scalia said when the court legalized same-sex marriage in Obergefell v. Hodges. He labeled the decision “a naked judicial claim to legislative — indeed, super–legislative—power; a claim fundamentally at odds with our system of government.” Scalia went so far as to describe the majority opinion as a “judicial Putsch” lacking “even a thin veneer of law.”
It is true that few Americans read Supreme Court opinions. But on the most consequential decisions, they see that the justices divide in highly predictable and ideologically consistent ways. Now, what is the public to make of that?
Chief Justice John Roberts wants us to believe that neither the court nor the judiciary as a whole has “Obama judges or Trump judges, Bush judges or Clinton judges.” Justice Neil Gorsuch insists that the court is not populated by “politicians in robes.”
Justice Amy Coney Barrett went on Fox News to say that justices “don’t wear red and blue, we all wear black because judges are nonpartisan. And the idea is that we are all listening to the law. We’re all trying to get it right. We’re not playing for a team.”
But it doesn’t inspire public confidence when the justices deny that politics plays any role at all. — it is just not plausible.
Together, hypocrisy and mystification do not offer a good formula for rebuilding the public’s fading confidence in the Supreme Court. We need a reset in the court’s self-presentation so Americans can decide whether they want to accept that it is its own distinctive kind of political institution.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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